Is Lifecycle Analysis Unconstitutional? New Frontiers in the Legal Battle Over Climate Science
Abstract
Recent federal court decisions have established that judges should not second-guess government agency findings related to basic climate change science [1,2]. Nevertheless, the legal battle over climate science is far from over. In the absence of federal legislation, climate policy opponents are developing new arguments to challenge the authority of states to regulate greenhouse gas emissions. This presentation describes a recent challenge to California's climate policy and provides an example of a strategic scientific response. In December 2011, a federal district court ruled that California's Low Carbon Fuel Standard ("LCFS") is unconstitutional [3]. The LCFS regulations employ lifecycle analysis to set a limit on the carbon intensity of fuels sold in California. According to the court, however, the policy's use of lifecycle analysis "facially discriminates" against interstate commerce. Because the court found that nondiscriminatory alternatives were available, it held the policy unconstitutional. If upheld, this reasoning would severely limit the ability of states to address climate change. On appeal to the Ninth Circuit, the Stanford Environmental Law Clinic represented climate scientists [4] and lifecycle analysis scientists [5] in support of upholding the LCFS. These briefs addressed the necessity of lifecycle analysis in the context of transportation fuels, and also presented evidence from the climate impacts literature that supports the state's interest in pursuing climate policy. Although written for the court and targeted at specific legal questions, both briefs were developed in the style of scientific assessments, based on published literature [6,7] and feedback from reviewers. Because courts lack the expertise to evaluate arguments about scientific issues, there is an ongoing need for climate scientists to participate in litigation. Perhaps most importantly, an effective response requires interdisciplinary collaboration between lawyers and scientists. Briefs must be framed to persuade judges and address specific legal questions, but must also accurately reflect the state of scientific evidence, including an accurate depiction of scientific uncertainty. Using the Clinic's experience in the LCFS case as an example, we reflect on opportunities for the scientific and legal communities to strategically collaborate in the future. References [1] Massachusetts v. EPA, 549 U.S. 497, 533 (2007). [2] Coalition for Responsible Regulation v. EPA, No. 09-1322, at *26 (D.C. Cir. June 26, 2012). [3] Rocky Mountain Farmers Union v. Goldstene, 843 F.Supp. 2d 1071, at *14 (E.D. Cal. 2011). [4] Brief for Ken Caldeira, Ph.D., et al. as Amici Curiae supporting Defendant-Appellants, Rocky Mountain Farmers Union v. Goldstene, No. 12-15131 (9th Cir. June 15, 2012). [5] Brief for Michael Wang, Ph.D., et al. as Amici Curiae supporting Defendant-Appellants, Rocky Mountain Farmers Union v. Goldstene, No. 12-15131 (9th Cir. June 15, 2012). [6] National Research Council (2011). America's Climate Choices. [7] D.R. Cayan et al. (eds.) (2011). California Second Assessment: New Climate Impact Studies and Implications for Adaptation. Climatic Change 109 (Supp. 1).
- Publication:
-
AGU Fall Meeting Abstracts
- Pub Date:
- December 2012
- Bibcode:
- 2012AGUFMPA21A1951C
- Keywords:
-
- 1630 GLOBAL CHANGE / Impacts of global change;
- 6319 POLICY SCIENCES / Institutions;
- 6615 PUBLIC ISSUES / Legislation and regulations